S.29 of The Protection of Children from Sexual Offences Act
Where a person is prosecuted for violating any of the provisions under sections 3, 5, 7 and section 9 of this Act, and where the victim is a child below the age of sixteen years, the Special Court shall presume, that such person has committed the offence, unless the contrary is proved.
presumption under Section 29 of the Protection of Children From Sexual
Offences Act, 2012. The prosecution, in the present case, had utterly even
failed to remotely connect the appellants with the commission of the
offence. The substantive evidence also does not disclose that the
prosecutrix / victim had named the accused as the offenders. In the absence
of that, therefore, the presumption cannot be drawn. Such is not the scope
of presumption under Section 29 of the Protection of Children From Sexual
Offences Act, 2012.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 795 OF 2014
Vishal @ Sagar Vasant Waghmare V The State of Maharashtra
CORAM: P. V. HARDAS &
G. S. KULKARNI, JJ.
DECEMBER 16, 2014
Citation; 2015 ALLMR(cri)301
The appellants/Original Accused Nos.1 to 3, who stand
convicted for offence punishable under Sections 363, 366, 376(D) of the
Indian Penal Code and sentenced to RI for five years and each accused to
pay a fine of Rs.2000/-, in default of which to undergo further RI for one
year, RI for seven years and each accused to pay a fine of Rs.2000/- in
default of which to undergo further RI for two years and imprisonment for
life and each accused to pay a fine of Rs.2000/-, with further direction that
compensation of Rs.15,000/- be paid to the victim and with a direction that
the substantive sentences shall run concurrently, by the Designated Court
under Protection of Children From Sexual Offences Act, 2012, for Greater
Bombay, by judgment dated 30/09/2014, in Sessions Case No. 880 of 2013,
2.
by this appeal challenge their conviction and sentence.
This court, while deciding Criminal Application No. 1429 of
2014, after perusing the depositions of the witnesses, directed that the
appeal be set down for final hearing after receipt of record and
proceedings. This court by the aforesaid order further dispensed with the
preparation of a formal paper book as the copies of the depositions of the
witnesses had been annexed by the appellants. Accordingly, after receipt of
record and proceedings, this appeal has been listed before us for final
hearing.
Facts in brief, as are necessary for the decision of this appeal
3.
may be stated thus :-
PW 3 – PSI Jitesh Shingote, who was attached to the Chembur
Police Station and was on duty on 20/6/2013, recorded the missing
complaint lodged by PW 2 – Jayram on 20/6/2013 at 3 p.m. In the said
missing complaint, PW 2 – Jayram had disclosed that his daughter – victim
aged about 13 years was missing since 19/6/2013. Accordingly, on the
basis of the complaint of PW 2 – Jayram, it was registered as missing
Complaint No. 11 of 2013. An entry in that behalf was taken in the station
diary at Exh. 37. After registering the missing complaint, PW 3 – PSI
Shingote deputed two lady constables along with the complainant
in
search of victim. During that search, victim was found in the Sandu
Garden, Chembur and was accordingly brought to the police station. PW 2
– Jayram thereafter lodged a complaint at the police station at Exh. 21, on
the basis of which an offence vide Crime No. 164 of 2013 was registered.
After registration of the offence, the clothes of PW 1 – victim were seized
under seizure memo at Exh. 22. The victim was thereafter referred to the
Nagpada Police Station for medical examination.
On the next day,
statement of PW 1 – victim was recorded. PW 3 – PSI Shingote thereafter
proceeded to the scene of the incident and drew the scene of the incident
panchanama in the presence of panchas at Exh. 23. The police officers
searched for the whereabouts of the accused and they were then taken into
custody and brought to the police station. The accused were arrested under
arrest panchanamas at Exhs. 33, 34 and 35. The clothes on the person of
the accused were seized under seizure memo at Exhs. 24, 25 and 26.
The accused were thereafter referred to the Nagpada Police
Station for medical examination. The birth certificate of the victim was
collected and is at Exh. 20. Further investigation was thereafter transferred
to PW 4 – PSI Yashodhara Muneshwar.
PW 4 – PSI Muneshwar recorded the further statement of PW
2 – Jayram and after receipt of the blood samples, forwarded the seized
properties to the Chemical Analyzer under requisitions at Exhs. 31 and 32.
Statement of one Kamladevi Katar was also recorded. Statements of other
witnesses were also recorded. The medical certificates of the accused are
at Exhs. 28, 29, 30 and the medical certificate of the victim is at Exh. 27.
Further to the completion of investigation, a charge-sheet against the
appellants was filed.
Victim was examined by the Medical Officer and the
certificate of examination of the victim is at Exh. 27. As per Exh. 27, the
Medical Officer found that the hymen of the victim was torn and the
position of the tears 12, 2, 3, 5 O'clock. The age of the tears were old
healed. The victim had given the history to the Medical Officer that since
last one year she was in love with one Vishal and had given history of
multiple, repeated consensual sexual intercourse with him since last one
year. The medical certificates of the accused do not disclose that the
accused had sustained any injury.
On the case being committed to the Court of Sessions, Trial
4.
Court framed charge against the appellants. The accused denied their guilt
and claimed to be tried. Prosecution in support of its case, surprisingly,
examined only 4 witnesses. The victim was examined as PW 1, who did
not support the prosecution and was cross-examined. PW 2 – Jayram also
did not support the prosecution and was cross-examined. The other two
witnesses are police officers, namely, PW 3 – PSI Shingote and PW 4 -
PSI Muneshwar. The medical certificates of the accused and the victim
were admitted under Section 294 of the Cr. P. C.
We have heard Mrs. Anjali Patil, learned Counsel for the
In order to effectively deal with the
appellants and the learned APP.
5.
submissions, which have been advanced before by the learned counsel for
the parties, it would be useful to refer to the evidence of the prosecution
witnesses.
Prosecution has examined the victim as PW 1. The name of
6.
the victim is deliberately withheld. The victim deposes that she knew one
Vishal who was residing in her locality. The victim claims that she had a
love affair with Vishal and, therefore, used to meet Vishal to the rear of the
In Lax Hospital at Chembur. She has admitted that she had illicit relations
with Vishal. According to her, on 19/6/2013 at about 8.30 p.m. she had
gone to Chembur Camp along with her father for purchasing vegetables.
She had noticed Vishal standing in front of the In Lax Hospital and Vishal
gestured her to meet him. At about 9.30 p.m. the victim left the place and
met Vishal. She thereafter telephoned one Gautam from the mobile of
Vishal and also invited him for going for a stroll. Gautam arrived there and
thereafter one Suresh and Avinash came there. All of them then went to
Sandu Garden and before that they had gone to Ramtekdi near the Golf
Club. Thereafter they had gone to the room of the maternal uncle of Sagar
@ Vishal. They had consumed beer in the said room and while they were
singing songs, accused – Vishal deluded the victim and committed sexual
intercourse with the victim. The other accused also committed sexual
intercourse with the victim against her consent. According to the victim,
she had then gone to the Sandu Garden, where she met her sister and the
lady police. She was then then to the police station, where she narrated the
incident and her statement was scribed. In the examination-in-chief itself,
she has declined to identify the accused as the same persons who had
committed forcible sexual intercourse with her. In fact, she states, “I
7.
cannot identify the persons who are now shown to me”.
In cross-examination on behalf of the prosecution, she has
admitted as correct that accused nos.1 to 3, who were now shown to her
were the same accused who had committed forcible sexual intercourse with
her. In cross-examination on behalf of the accused, she has admitted as
true that the accused who were shown to her were not the accused who had
taken her with them and who had committed forcible sexual intercourse
with her. She has admitted as correct that after her father had lodged the
missing complaint, her father and her sister met her when she was loitering
and had taken her to the police station.
She has also admitted that
police. She has also declined to identify the clothes to be hers.
whatever she had deposed had been deposed by hr at the instance of the
8.
The learned counsel for the appellants has rightly urged before
us that no reliance whatsoever can be placed on the testimony of PW 1 –
victim, as initially the victim has declined to identify the accused and
thereafter at the behest of the prosecution, identified the accused. Victim
thereafter during the cross-examination on behalf of the accused has
declined to identify the accused and in categorical terms had stated that the
accused were not the offenders who had committed the crime.
In our
opinion, no reliance whatsoever could have been placed on the testimony
of PW 1 – victim as the victim was making inconsistent and irreconcilable
statement in the examination-in-chief and in the cross-examination.
9.
Prosecution has examined PW 2 – Jayram, father of the
victim, who also did not support the prosecution and was declared hostile.
PW 3 – Jayram has admitted about lodging of the missing complaint but
thereafter has completely somersaulted from the previous statement. He
was confronted with the portions from his earlier statement, which he had
declined to have stated. The contradictions have been duly proved by the
examination of the Investigating Officer. The contradictions in the 161
statements do not form substantive evidence.
10.
The trial court also, in our opinion, erred in relying on the
presumption under Section 29 of the Protection of Children From Sexual
Offences Act, 2012. The prosecution, in the present case, had utterly even
failed to remotely connect the appellants with the commission of the
offence. The substantive evidence also does not disclose that the
prosecutrix / victim had named the accused as the offenders. In the absence
of that, therefore, the presumption cannot be drawn. Such is not the scope
of presumption under Section 29 of the Protection of Children From Sexual
Offences Act, 2012.
11.
It would thus be seen that there is no substantive evidence at
all that the appellants were the offenders who had forcibly taken the victim
along with them and had committed forcible sexual intercourse.
Mere
narration of history given by the victim to the Medical Officer and which is
reflected in the medical certificate at Exh. 27 by itself would not constitute
evidence nor does it established a nexus between the said persons and the
accused before the court. For sustaining the conviction of an accused,
there has to be substantive evidence and the prosecution is not absolved
from proving the offence against the accused beyond reasonable doubt. In
the present case there is no evidence whatsoever to prove the offence
against the appellants beyond reasonable doubt. The appellants, in our
opinion, therefore, are entitled to be given the benefit of doubt.
Accordingly, Criminal Appeal is allowed and the conviction
12.
and sentence of the appellants is hereby quashed and set aside and the
appellants are acquitted of the offence with which they were charged and
convicted. Fine, if paid by the appellants, be refunded to them. Since the
appellants are in jail, they be released forthwith, if not required in any other
case.
(P. V. HARDAS,J.)
(G. S. KULKARNI,J.)
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